U.S. v. Anderson

• Decision Date: 09 June 2006
• Docket Number: No. 04-4173.,No. 04-4113.,04-4113.,04-4173.
• Citation: 450 F.3d 294
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dexter ANDERSON, a/k/a Dek, and Valencia Y. Parsons, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

450 F.3d 294

UNITED STATES of America, Plaintiff-Appellee, v. Dexter ANDERSON, a/k/a Dek, and Valencia Y. Parsons, Defendants-Appellants.

No. 04-4113.

No. 04-4173.

United States Court of Appeals, Seventh Circuit.

Argued September 7, 2005.

Decided June 9, 2006.

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William J. Roach (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Anthony Casey (argued), Wachtell, Lipton, Rosen & Katz, New York, NY, David S. Rosenbloom, Amy J. Carletti, McDermott, Will & Emery, Chicago, IL, for Defendants-Appellants.

Before CUDAHY, MANION, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

A jury found Dexter Anderson and Valencia Parsons guilty of several charges stemming from their involvement in a crack cocaine conspiracy operating in Green Bay, Wisconsin. Both appeal, claiming that Sixth Amendment and due process violations occurred during trial. Anderson also challenges the probable cause for the warrant used to search his Milwaukee apartment. We affirm.

I. Background

After receiving a tip from a confidential informant and conducting some follow-up investigation of his own, Agent Bernard Bolf of the Drug Enforcement Administration ("DEA") arranged a series of controlled drug buys in Green Bay from two crack cocaine dealers known as "Dex" (or "Deck" or "Derek Mitchell," among other names) and "Ebony." Bolf believed "Dex" and "Ebony" to be Dexter Anderson and Valencia Parsons. Each of the controlled buys followed the same pattern. Renee Rogers, a crack user cooperating with Bolf, would call Dex on his cell phone and say she needed crack. Ebony would deliver the crack, each time arriving in either a 1991 Pontiac Grand Am (registered to Valencia Parsons) or a 2001 Chrysler Town & Country minivan (registered to Dexter Anderson). Rogers would pay Ebony with marked bills, and Ebony would give Rogers the crack, which Rogers would then turn over to Agent Bolf.

After five controlled buys Bolf sought a search warrant for Anderson's Milwaukee apartment and Parsons' Green Bay residence. Though the buys took place in Green Bay, Bolf's investigation linked Anderson to the apartment in Milwaukee. Bolf also had evidence that Anderson orchestrated some of his deals from Milwaukee. In addition, four other informants working with Bolf said they called the same cell phone number Rogers called during the controlled buys to speak with a man named Dex about buying crack. One informant identified Dex as Dexter Anderson; she estimated she bought crack from him over 100 times. Another informant identified Valencia Parsons as Ebony and said that Parsons told him to call "Dek" to buy crack; the same informant said he knew Parsons sold crack for Anderson. Phone records showed that shortly after Anderson received calls from the informants, he called Parsons' phone number. Bolf got his warrant.

A search of both residences turned up incriminating evidence. In Anderson's Milwaukee apartment, officers found a cell phone matching the number that Renee Rogers called during the controlled buys. The phone also showed that in the hours before agents executed the warrant, Anderson had called Parsons' cell phone. Agents also found over 61 grams of crack in false-bottom containers, $800 in cash in another false-bottom container, two guns, and a vehicle title sale for the 1991 Pontiac Grand Am. At Parsons' Green Bay residence, agents found the cell phone matching the number that Anderson had called, several rocks of crack, a title and license application for the 1991 Pontiac Grand Am in Parsons' name, and a key for the 2001 Chrysler van registered to Anderson. Agents also located the van and recovered cocaine base from inside it.

Anderson and Parsons were charged with conspiracy to distribute crack cocaine, possession with intent to distribute crack cocaine, and distribution of crack cocaine. (Anderson was also charged with being a felon in possession of firearms, but that is unimportant to this appeal.) Agent Bolf testified at trial about his conversations with informants, and most of the informants also testified. The informant who first tipped Bolf off, however, did not testify. In a brief exchange the government asked Bolf about what the nontestifying informant told him:

Q: In the winter of 2002 or thereabouts, did you receive information from an informant about a person with the nickname or name Deck or Dex?

A. Yes, I did, about November, December of 2002.

Q: And at the time you received that information from that informant about Deck or Dex, did you know immediately who that was?

A: No, I did not.

Q: Was your information that a Deck or a Dex was an individual who sold drugs, though?

A: Yes. The individual had told me that Deck was coming. I'm sorry. The individual told me that Deck was an individual coming up to Green Bay and having crack cocaine sold by a young female he called Ebony from various hotels in the area.

Five witnesses — four of whom either used or dealt and bought drugs directly from the defendants — identified Anderson and Parsons as Dex and Ebony. These witnesses identified the drugs they purchased as crack. Bolf also identified the drugs from the controlled buys as crack. The parties stipulated that a government expert would testify that the evidentiary substances he tested were cocaine base, and the judge read the stipulation into evidence. During closing argument, however, the prosecutor mischaracterized the stipulation several times, telling jurors that the parties agreed the substance was crack.

The jury convicted Anderson and Parsons on all counts, although Parsons was found guilty of conspiring to distribute only five grams of crack, rather than the fifty or more grams for which she was charged. Anderson was found guilty of conspiring to distribute fifty or more grams of crack. The judge sentenced Anderson to twenty-five years, based in part on the twenty-year minimum applicable to a defendant with Anderson's criminal history who is convicted of crack offenses. Both Anderson and Parsons appeal, with Parsons seeking a new trial and Anderson seeking a new trial or (at least) a new sentence.

II. Discussion

Anderson and Parsons raise several issues between them. Both argue that Agent Bolf's testimony about his conversations with the confidential informant who did not testify was inadmissible hearsay and violated their Sixth Amendment right to confront witnesses against them. They also argue that the prosecutor's mischaracterization of the parties' stipulation about drug type misled the jury into thinking it did not need to determine the type of drug in question. Parsons individually makes a due process claim based on what she asserts is the cumulative prejudicial effect of the following: (1) the failure to sever her trial from Anderson's, (2) a witness's reference to having seen a "booking photo" of Parsons, and (3) Bolf's testimony about conversations he had with the informants who were called to testify. Finally, Anderson claims that the search warrant for his Milwaukee apartment was not supported by probable cause.

A. Sixth Amendment Rights

Bolf testified to information provided by the confidential informant who first tipped him off about Dex and Ebony's drug business, but this particular informant never testified at trial. Anderson and Parsons argue that this hearsay testimony violated their Sixth Amendment right to confront the witnesses against them. They failed to object below so we review only for plain error. See United States v. McCaffrey, 437 F.3d 684, 690 (7th Cir.2006). To win reversal under the plain error test, Anderson and Parsons must first show there was error, that it was plain, and that it affected their substantial rights. United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002).

The government concedes that eliciting testimony from Bolf about what the nontestifying informant told him about Anderson and Parsons violated their confrontation rights. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); see also United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004). Accordingly, Anderson and Parsons have only to show an effect on their substantial rights, meaning the outcome of the trial was influenced by the error. If they do, we may exercise our discretion to reverse, but will do so only if the error "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Cotton, 535 U.S. at 631-32, 122 S.Ct. 1781. We have sometimes put this last part of the test differently, requiring a "miscarriage of justice" before a plain error will warrant reversal. See, e.g., United States v. Bonner, 440 F.3d 414, 416 (7th Cir.2006) ("[Plain] error is not correctable without proof that intolerable prejudice or a miscarriage of justice has occurred." (quotations omitted)). If there is a serious risk that an innocent person has been found guilty, United States v. Paladino, 401 F.3d 471, 481 (7th Cir.2005), or if there is closely contested evidence on both sides of an issue, United States v. Westmoreland, 240 F.3d 618, 635 (7th Cir.2001), we will reverse under the plain error standard. There is no plain error when the defendant would have lost anyway, see, e.g., United States v. Raney, 342 F.3d 551, 559-60 (7th Cir.2003); United States v. Hernandez, 330 F.3d 964, 969-70 (7th Cir.2003), and this case is a good example of that principle.

The evidence against Anderson and Parsons, even absent the hearsay, was overwhelming. Five witnesses identified Anderson and Parsons as Dex and Ebony and testified that the two repeatedly sold crack cocaine. Renee Rogers, for instance, testified that she met Anderson personally and that he went by the name "Dex." Rogers described how she bought crack cocaine from Dex for personal consumption and also middled deals for him. Rogers identified Ebony — Parsons — as the person who usually delivered the crack to her. Likewise, Mendell Campbell,...